Rinehart v Rinehart - [2019] NSWSC 759

Supreme Court

New South Wales

Medium Neutral Citation: Rinehart v Rinehart [2019] NSWSC 759
Hearing dates: 20 May 2019
Decision date: 21 June 2019
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
(1)   Set aside the subpoena issued by the plaintiff on 18 October 2018 to the Proper Officer of the Commonwealth Bank of Australia.
(2)   Set aside the notice to produce issued by the plaintiff on 18 October 2018 to the second defendant.
(3)   Order the plaintiff to pay the costs of the respective applications by each of the first defendant and CEF Pty Ltd to set aside the subpoena addressed to the Proper Officer of the Commonwealth Bank of Australia as well as the costs of the application by the second defendant to set aside the notice to produce served on it.

Catchwords: CIVIL PROCEDURE – Subpoenas – Notice to Produce – legitimate forensic purpose – whether fishing expedition – whether abuse of process
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-58
Commercial Arbitration Act 2010 (NSW)
Corporations Act 2001 (Cth), ss 79, 237, 247A
Uniform Civil Procedure Rules 2005 (NSW), r 34.1
Cases Cited: Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250
Bianca Hope Rinehart as trustee of The Hope Margaret Hancock Trust [2017] NSWSC 282
Brimaud v Honeysett Instant Print Pty Ltd (unreported, Supreme Court of NSW, 19 September 1998)
Frazer v Macquarie Airports Management Ltd [2009] NSWSC 1057
Howell v O ‘Brien [2009] NSWSC 538
In the matter of Combined Projects (Arncliffe) Pty Ltd [2018] NSWSC 649
Kazal v Independent Commission Against Corruption [2018] NSWSC 1370
Lowery v Insurance Australia Limited [2015] NSWCA 303
NSW Commissioner of Police v Tuxford [2002] NSWCA 139
Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13
Rinehart v Rinehart [2015] NSWSC 205
Rinehart v Rinehart [2018] NSWSC 1102
Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198; [2001] NSWCA 142
Trade Practices Commission v CC (NSW) Pty Ltd (No 4) (1995) 58 FCR 426
Tyco Australia Pty Ltd v Leighton Contractors Pty Ltd (2005) 142 FCR 428; [2005] FCAFC 115
Vella v Minister for Immigration and Border Protection [2014] FCA 1177
Waind v Hill and National Employers’ Mutual General Association Ltd [1978] 1 NSWLR 372
Yara Australia Pty Ltd v Burrup Holdings Limited [2010] FCA 1273
Yes Family Pty Ltd v Sphere Healthcare Pty Ltd [2016] NSWSC 393
Category: Procedural and other rulings
Parties: Bianca Hope Rinehart as trustee for The Hope Margaret Hancock Trust (Plaintiff)
Georgina Hope Rinehart (First Defendant)
Hancock Prospecting Pty Ltd (Second Defendant)
Tadeusz Watroba (Third Defendant)
Jay Elliot Newby (Fourth Defendant)
CEF Pty Ltd (Applicant on Motion)
Representation:
Counsel:
D Thomas SC with D Hume (Plaintiff)
C Bova with J Burnett (First, Third and Fourth Defendants)
J Giles SC with J Kennedy (Second Defendant)
T Duggan QC with M Davis (CEF Pty Limited)
Solicitors:
Yeldham Price O’Brien Lusk (Plaintiff)
Jones Day (First, Third and Fourth Defendants)
Corrs Chambers Westgarth (Second Defendant)

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWSC 759
Decision Date: 21 June 2019

CaseChat Overview and Summary

In Rinehart v Rinehart, the dispute involved a complex family trust arrangement and the production of documents. The matter was heard in the Supreme Court of New South Wales. The respondent, Gina Rinehart, sought an order to quash a subpoena issued by her father, the applicant, which required her to produce certain documents related to a trust. The respondent argued that the subpoena was an abuse of process and was intended as a fishing expedition rather than for a legitimate forensic purpose.

The court was required to determine whether the subpoena served a legitimate forensic purpose and whether it was an abuse of process or a fishing expedition. The respondent argued that the subpoena was oppressive and an abuse of process because it was overly broad and sought information unrelated to the proceedings. The applicant contended that the subpoena was necessary to uncover evidence relevant to the case.

The court found that the subpoena did not serve a legitimate forensic purpose as it was overly broad and sought documents that were not directly relevant to the proceedings. The court considered that the subpoena was oppressive and an abuse of process as it appeared to be a fishing expedition. The court held that the subpoena was not justified and quashed it. The court emphasised the importance of proportionality and relevance in issuing subpoenas to prevent abuse of process.

The final orders of the court were that the subpoena issued by the applicant was quashed, and the respondent was awarded costs associated with the application to quash the subpoena. The court's decision highlights the need for subpoenas to be narrowly tailored to the issues in the case and not used as a means to uncover unrelated information.

Orders